Case :0-cv-0 Document Filed /0/00 Page of 0 JORDAN ETH (BAR NO. ) TERRI GARLAND (BAR NO. ) PHILIP T. BESIROF (BAR NO. 0) MORRISON & FOERSTER LLP Market Street San Francisco, California 0- Telephone:..000 Facsimile:.. pbesirof@mofo.com Attorneys for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles J. Abbe UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 0 In re JDS UNIPHASE CORPORATION SECURITIES LITIGATION This Document Relates To: All Actions MASTER FILE NO. C-0- CW (EDL) sf- Master File No. C-0- CW (EDL) DEFENDANTS NOTICE OF APPLICATION AND APPLICATION FOR () ORDER TO SHOW CAUSE WHY A CONTEMPT CITATION SHOULD NOT ISSUE TO JEFF NGUYEN AND () ORDER COMPELLING COMPLIANCE WITH SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Ctrm: Before: TBD TBD E, th Floor Hon. Elizabeth D. Laporte
Case :0-cv-0 Document Filed /0/00 Page of 0 0 NOTICE OF APPLICATION TO LEAD PLAINTIFF AND NONPARTY JEFF NGUYEN AND COUNSEL OF RECORD: Pursuant to Federal Rules of Civil Procedure, Rules (e), (c), and (a), Defendants bring the application for () an order to show cause why a contempt citation should not issue against Jeff Nguyen for failing to comply with a properly issued subpoena of this Court to produce documents and appear for deposition and () an order compelling Mr. Nguyen to comply with the subpoena. This application is based on this notice of application, the memorandum of points and authorities in support thereof, the declaration of Stuart C. Plunkett, and such further matters that are presented to the Court. A hearing date has not been determined. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This application arises from nonparty Mr. Nguyen s failure to obey a valid subpoena of this Court for the production of documents and appearance at a deposition served on him by Defendants. Mr. Nguyen did not serve objections to the subpoena, nor did he seek a protective order. Mr. Nguyen has simply ignored the subpoena and has ignored attempts by Defendants to discuss the subpoena with him. Under these circumstances, Defendants ask this Court to order Mr. Nguyen to show cause why he should not be found in contempt of Court for disobeying a valid subpoena and to compel Mr. Nguyen to produce the requested documents and to appear for deposition. Mr. Nguyen is one of fifty so-called confidential witnesses who allegedly provided Plaintiffs with information cited in the Second Amended Complaint ( Complaint ) in this action. Defendants attempted to obviate the need to seek the Court s assistance in this matter by asking Plaintiffs to agree that they would not rely on Mr. Nguyen to support their claims in light of Mr. Nguyen s refusal to obey the subpoena. Instead of agreeing to Defendants reasonable solution, Plaintiffs stated that they were unable to say whether they would attempt to support their claims with Mr. Nguyen s testimony. Defendants are thus entitled to depose Mr. Nguyen, and Defendants now require the Court s intervention to do so given his utter silence since receiving the subpoena. MASTER FILE NO. C-0- CW (EDL) sf-
Case :0-cv-0 Document Filed /0/00 Page of II. STATEMENT OF FACTS The Complaint in this case relies heavily on statements and purported evidence of 0 0 confidential witnesses, including Mr. Nguyen. (Declaration of Stuart C. Plunkett in Support of Defendants Application ( Plunkett Decl. ).) Plaintiffs have indicated during discovery that they relied on the statements and evidence of Mr. Jeff Nguyen in making certain allegations in the Complaint. (Id..) Plaintiffs have identified Mr. Nguyen as confidential witness number and have attributed statements to him in paragraphs and of the Complaint concerning alleged dates and details of cancellations of product orders. (Id.) Plaintiffs have indicated that Mr. Nguyen spoke with, and provided information to, their investigator on at least two occasions: May, 00 and May, 00. (Id.) Accordingly, Defendants sought to depose Mr. Nguyen. On September, 00, Defendants timely served a notice of subpoena on all parties. (Id., Ex. A.) On September, 00, Defendants effected personal service of a subpoena issued from the North District of California with attached document requests on Mr. Nguyen, along with the appropriate witness fees. (Id., Ex. B.) The deposition was set for October, 00, at 0:00 a.m. in the offices of Morrison & Foerster LLP, at Market Street, San Francisco. (Id.) Defendants offered to work with Mr. Nguyen s schedule. (Id..) Mr. Nguyen did not appear at the deposition, nor did he produce any documents as he was required to do on October, 00. (Id., Ex. C.) Mr. Nguyen has never served objections, never moved for a protective order, or otherwise contacted counsel for Defendants regarding the subpoena. (Id..) Plaintiffs did not move to quash the subpoena. (Id.) Pursuant to Local Rule -, counsel for Defendants attempted to obviate the need for the Court s assistance in compelling Mr. Nguyen s deposition testimony by proposing that Plaintiffs confirm they would not attempt to rely on Mr. Nguyen s testimony or alleged statements to support their claims in this action. (Plunkett Decl..) Despite Mr. Nguyen s failure to comply with the subpoena, Plaintiffs indicated in a letter of October, 00 that Plaintiffs are unable at this time to stipulate that [Plaintiffs] will not use testimony or evidence from [Mr. Nguyen] to support [Plaintiffs ] case. (Id...) Counsel for Defendants telephoned Plaintiffs counsel MASTER FILE NO. C-0- CW (EDL) sf-
Case :0-cv-0 Document Filed /0/00 Page of reiterating Defendants proposal, but at the time of filing had received no indication that Plaintiffs would reconsider their position. (Id..) Finally, as of the time of this filing, Mr. Nguyen had not responded to an October 0, 00 letter requesting that he contact Morrison & Foerster to avoid the filing of this application. (Id..) III. ARGUMENT This Court should issue an order requiring Plaintiffs confidential witness number, 0 0 nonparty Mr. Nguyen, to show cause why he is not in contempt of Court for failure to comply with a valid subpoena and order Mr. Nguyen to comply with the subpoena. Mr. Nguyen should be ordered to show cause for his failure to comply with the subpoena issued from this Court. A subpoena is an order of the court. See Young v. United States, U.S., () (Scalia, J., concurring) (noting that courts are empowered to prosecute for contempt those who... disobey orders necessary to the conduct of... business (such as subpoenas). ); Fisher v. Marubeni Cotton Corp., F.d, 0 (th Cir. ) ( A subpoena is a lawfully issued mandate of the court issued by the clerk thereof. ). A witness, therefore, can be held in contempt of court for failing to comply with a subpoena. Rule (e) expressly provides that [f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Fed. R. Civ. P. (e). To enforce the subpoena, the aggrieved party should file an application for an order to show cause why a contempt citation should not issue. James Wm. Moore et al., Moore s Federal Practice 0.0[], at 0- (d ed. 00). Accordingly, Defendants have filed this application seeking an order for Mr. Nguyen to show cause why a contempt citation should not issue against him for failing to comply with the subpoena. Mr. Nguyen is in contempt of court. Rule (e) applies to nonparty witnesses, as well as to parties. See, e.g., Gen. Ins. Co. of America v. E. Consol. Utils., Inc., F.d (d Cir. ). In General Insurance Company, the district court held a nonparty witness in contempt of court for failing to attend his deposition and for refusing to cooperate with the party requesting the deposition testimony. Id. at. See also Painewebber Inc. v. Acstar Ins. Co., F.R.D., (S.D.N.Y. 00) (stating that [t]he Court has the power under this rule to impose MASTER FILE NO. C-0- CW (EDL) sf-
Case :0-cv-0 Document Filed /0/00 Page of 0 0 contempt simply on the basis of failure to comply with a subpoena, and holding non-parties in contempt for failure to respond or object to subpoenas or to provide adequate excuse for inaction) (citation omitted). A subpoenaed party s failure to comply with the subpoena is prima facie evidence of contempt. See Sec. Investor Prot. Corp. v. Executive Sec. Corp., F. Supp. 0, (S.D.N.Y. ). Here, Mr. Nguyen was properly subpoenaed. The subpoena was validly issued within the Northern District. Fed. R. Civ. P. (a)()(b) (attorney as officer of the court may issue and sign subpoena on behalf of a court for a district on which the deposition or production is compelled). It was validly served. See Fed. R. Civ. P. (b)(). Mr. Nguyen was personally served with the subpoena on September, 00 well in advance of both the deposition of October, 00 and the deadline to produce documents on October, 00. (Plunkett Decl., Ex. B.) This service provided more than the required reasonable time for Mr. Nguyen to comply. See Fed. R. Civ. P. (c)()(a)(i). Notice was served on all parties on September, 00. (Plunkett Decl., Ex. A.) The place of the deposition and document production was the offices of Morrison & Foerster, LLP, Market Street, San Francisco, California, which is approximately miles from the deponent s home address. (See id., Ex. B.). The subpoena is valid because it does not require a require a nonparty to travel more than 00 miles from the place where that person resides. See Fed. R. Civ. P. (c)()(a)(ii). Neither Mr. Nguyen nor Plaintiffs sought relief from the subpoena. Mr. Nguyen was entirely non-responsive. Not only did Mr. Nguyen fail to attend his deposition or to produce documents, he never served objections to the subpoena, never sought a protective order, and never contacted counsel for Defendants regarding the subpoena. (Plunkett Decl..) Likewise, Plaintiffs did not move to quash the subpoena or seek a protective order. (Id..) Rule (c)()(b) provides that a nonparty has days after service of the subpoena or before the time specified for compliance if such time is less than days after service to serve written objections to the subpoena. Fed. R. Civ. P. (c)()(b). Mr. Nguyen has waived his objections to the subpoena, including those of privilege. See Fed. R. Civ. P. (c)()(b); In re DG Acquisition Corp., F.d, (d Cir. ) (objections, including privilege, waived by delay). MASTER FILE NO. C-0- CW (EDL) sf-
Case :0-cv-0 Document Filed /0/00 Page of 0 Defendants have incurred significant expenses in pursuing this deposition, including expenses associated with the subpoena, the deposition itself, and, now, this application. Accordingly, this court should hold Mr. Nguyen in contempt for failing to comply with the subpoena. If Plaintiffs intend to rely on Mr. Nguyen to support their case, Defendants have a right to depose him and to obtain any relevant documents he may have. Thus, the Court should issue an order compelling Mr. Nguyen to comply with the Rule subpoena under the authority of Federal Rules of Civil Procedure, Rules (c) and (a)(). See, e.g., Biovail Labs., Inc. v. Anchen Pharm., Inc., F.R.D., - (C.D. Cal. 00) (compelling depositions of nonparty witnesses); Aetna Cas. & Sur. Co. v. Rodco Autobody, 0 F.R.D., - (D. Mass. 0) (same). CONCLUSION For the foregoing reasons, Defendants application should be granted and the Court should () issue an order to Mr. Nguyen to appear and to show cause why he is not in contempt of court and () order him to comply with the subpoena. Dated: November, 00 JORDAN ETH TERRI GARLAND PHILIP T. BESIROF MORRISON & FOERSTER LLP 0 By: /s/ Philip Besirof Philip Besirof Attorneys for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles J. Abbe MASTER FILE NO. C-0- CW (EDL) sf-